Monday, December 11, 2006

Contested divorces can share parenting

the proponents of shared parenting initiatives refuse to consider the following facts:

1. families who divorce amicably usually come up with their own custody arrangements;2. many families who don't divorce amicably still end up settling on an agreed order;3. the small percentage of contested cases that end up in the courts which would force undue burdens of proof on litigants to avoid shared parenting are families in which abuse has more often occurred. There are the very families for whom shared parenting is completely inappropriate.

The argument here is that we should have shared parenting for settled cases, but not adjudicated cases. The argument is repeated a lot, and rarely refuted, but it is totally idiotic.

Our legal system cannot have one favored outcome for settled cases, and another for adjudicated cases. It just cannot work that way. People settle cases based on an expectation on how they will be adjudicated. If the legal system worked smoothly, and a case had no facts in dispute, then the case would settle because no one would have any advantage to spending the time and money on litigation. If facts are in dispute, then court action might be needed to resolve those facts. But the court should never try to punish one side for failing to sign a settlement that the court would never order anyway.

Many feminists and even child custody evaluators take the position that shared parenting is fine if both parents agree, but if they fail to agree, then the court should order primary custody to the mom. The position is illogical. If shared parenting is good when the parents agree, then it is even better when they don't agree. The court should be issuing orders that approximate a desirable agreement, and not giving incentives for disagreement.